On January 01, 2023 a
Order
was filed
involving a dispute between
Andrew Harbaugh,
and
Emergency Professional Services, Inc. Corporation Service Company, Statutory Agent,
Julie Aljabi,
Southwest General,
Southwest General Health Center Susan Scheutzow, Statutory Agent,
Southwest General Medical Group, Inc. Susan Scheutzow, Statutory Agent,
Tushar Shah Md,
University Hospitals Health System, Inc. Acfb Incorporated, Statutory Agent,
University Hospitals Medical Group, Inc. Acfb Incorporated, Statutory Agent,
for TORT-MEDICAL MALPRACTICE
in the District Court of Cuyahoga County.
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Motion No. 5098654
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113
Court of Common Pleas
MOTION TO...
June 21,2023 15:22
By: ERIC HENRY 0086750
Confirmation Nbr. 2889583
ANDREW HARBAUGH, INDV., E-0 JOHN CV 23 975038
HARBAUGH
vs.
Judge: SHIRLEY STRICKLAND SAFFOLD
SOUTHWEST GENERAL, ET AL.
Pages Filed: 3
Electronically Filed 06/21/2023 15:22 / MOTION / CV 23 975038 / Confirmation Nbr. 2889583 / CLCEJ
IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO
ANDREW HARBAUGH, individually and ) Case No: CV 23 975038
as administrator of the ESTATE OF JOHN)
HARBAUGH, )
JUDGE SHIRLEY STRICKLAND
) SAFFOLD
)
Plaintiff, )
) PLAINTIFF’S MOTION TO STAY
v. ) RESPONSE TO DEFENDANT JULIE
) ALJABI, RN’S MOTION TO DISMISS
SOUTHWEST GENERAL, ET AL. ) PENDING RULING ON MOTION FOR
) LEAVE
)
Defendants. )
Now comes Plaintiff, by and through counsel, and submits his Motion to Stay
Response to Defendant Julie Aljabi, RN’s Motion to Dismiss pending a ruling on Plaintiff's
pending Motion for Leave.
On February 15, 2022, Mr. Harbaugh (“Decedent”) presented to Southwest General
emergency room for sudden onset pain to his left groin and thigh area. An X-Ray was
performed, and he was given Toradol and Flexor for pain. Dr. Tushar Shah diagnosed Mr.
Harbaugh with a left groin and thigh strain, and he was discharged. Mr. Harbaugh died in
his home that same night from a ruptured abdominal aortic aneurysm that Dr. Shah and the
other defendants failed to diagnose or treat.
Plaintiff filed his Complaint for medical negligence and wrongful death on
February 13, 2023, related Mr. Harbaugh's untimely death. The Complaint names
Defendants, Southwest General, Southwest General Health Center, Southwest General
Medical Group, Inc. University Hospital System, Inc. University Hospitals Medical Group,
Inc. (“Hospitals”), Emergency Professional Services, Inc. and Dr. Tushar Shah. In support
Electronically Filed 06/21/2023 15:22 / MOTION / CV 23 975038 / Confirmation Nbr. 2889583 / CLCEJ
of his Complaint, Plaintiff produced the Affidavit of Merit of Dr. Sorabh Khandelwal, who
opined that the Defendants’ breached their standard of care to Mr. Harbaugh.
Thereafter, and after defense counsel refused to stipulate to the vicarious liability
of treating nurse Julie Aljabi, Plaintiff amended his Complaint to add nurse Aljabi as an
additional party. In doing so, Plaintiff again referred to the affidavit of Dr. Khandelwal,
whose finding of a breach of the standard of care necessarily included the actions of the
employees of the hospital defendants. Defense counsel moved to dismiss based on a failure
to include a wholly new affidavit specifically directed to nurse Aljabi.
To avoid any uncertainty, Plaintiff obtained, and moved for leave to file, an
additional affidavit of Dr. Sean Greenhalgh, directed specifically to defendant Aljabi.
Granting Plaintiff leave to file Dr. Greenhalgh’s affidavit of merit would render defense
counsel’s argument about the validity of Dr. Khandelwal’s affidavit moot and render its
Motion to Dismiss on the basis of an Affidavit of Merit likewise moot.
Because Plaintiff has a pending Motion for Leave that will resolve the arguments
raised by Defendant in its Motion to Dismiss based on the affidavit of merit, Plaintiff
respectfully requests a stay on responding to the Motion to Dismiss until the Court can rule
on Plaintiff’s Motion for Leave. Granting a stay on Plaintiff’s Opposition to the Motion to
Dismiss will, like granting Plaintiff’s Motion for Leave, preserve judicial time and
resources, unnecessary delays and costs.
WHEREFORE, based on the forgoing, Plaintiff respectfully requests an Order
staying its response to Defendant’s Motion to Dismiss based on an Affidavit of Merit
pending the Court’s ruling on Plaintiff’s Motion for leave to supplement its pleading with
the affidavit of merit specifically directed toward Nurse Aljabi.
Electronically Filed 06/21/2023 15:22 / MOTION / CV 23 975038 / Confirmation Nbr. 2889583 / CLCEJ
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Respectfully submitted,
/s/ Eric W.Henry
Eric W. Henry, Esq. (0086750)
Katherine S. Knouff (0085566)
The Henry Law Firm
8401 ChagrinRoad, Suite 18
Chagrin Falls, Ohio 44023
440-337-0083 Telephone
440-337-0084 Facsimile
eric@erichenrylaw.com
Kathie@erichenrylaw.com
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
Counsel for Plaintiff hereby certifies that a true and accurate copy of the foregoing
has been sent to all counsel of record via this Court’s e-filing system this 21st day of June
2023.
ERIC W. HENRY (0086750)
Attorney for Plaintiff
Electronically Filed 06/21/2023 15:22 / MOTION / CV 23 975038 / Confirmation Nbr. 2889583 / CLCEJ
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Motion No. 5098654 NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas MOTION TO... June 21,2023 15:22 By: ERIC HENRY 0086750 Confirmation Nbr. 2889583 ANDREW HARBAUGH, INDV., E-0 JOHN CV 23 975038 HARBAUGH vs. Judge: SHIRLEY STRICKLAND SAFFOLD SOUTHWEST GENERAL, ET AL. Pages Filed: 3 Electronically Filed 06/21/2023 15:22 / MOTION / CV 23 975038 / Confirmation Nbr. 2889583 / CLCEJ IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO ANDREW HARBAUGH, individually and ) Case No: CV 23 975038 as administrator of the ESTATE OF JOHN) HARBAUGH, ) JUDGE SHIRLEY STRICKLAND ) SAFFOLD ) Plaintiff, ) ) PLAINTIFF’S MOTION TO STAY v. ) RESPONSE TO DEFENDANT JULIE ) ALJABI, RN’S MOTION TO DISMISS SOUTHWEST GENERAL, ET AL. ) PENDING RULING ON MOTION FOR ) LEAVE ) Defendants. ) Now comes Plaintiff, by and through counsel, and submits his Motion to Stay Response to Defendant Julie Aljabi, RN’s Motion to Dismiss pending a ruling on Plaintiff's pending Motion for Leave. On February 15, 2022, Mr. Harbaugh (“Decedent”) presented to Southwest General emergency room for sudden onset pain to his left groin and thigh area. An X-Ray was performed, and he was given Toradol and Flexor for pain. Dr. Tushar Shah diagnosed Mr. Harbaugh with a left groin and thigh strain, and he was discharged. Mr. Harbaugh died in his home that same night from a ruptured abdominal aortic aneurysm that Dr. Shah and the other defendants failed to diagnose or treat. Plaintiff filed his Complaint for medical negligence and wrongful death on February 13, 2023, related Mr. Harbaugh's untimely death. The Complaint names Defendants, Southwest General, Southwest General Health Center, Southwest General Medical Group, Inc. University Hospital System, Inc. University Hospitals Medical Group, Inc. (“Hospitals”), Emergency Professional Services, Inc. and Dr. Tushar Shah. In support Electronically Filed 06/21/2023 15:22 / MOTION / CV 23 975038 / Confirmation Nbr. 2889583 / CLCEJ of his Complaint, Plaintiff produced the Affidavit of Merit of Dr. Sorabh Khandelwal, who opined that the Defendants’ breached their standard of care to Mr. Harbaugh. Thereafter, and after defense counsel refused to stipulate to the vicarious liability of treating nurse Julie Aljabi, Plaintiff amended his Complaint to add nurse Aljabi as an additional party. In doing so, Plaintiff again referred to the affidavit of Dr. Khandelwal, whose finding of a breach of the standard of care necessarily included the actions of the employees of the hospital defendants. Defense counsel moved to dismiss based on a failure to include a wholly new affidavit specifically directed to nurse Aljabi. To avoid any uncertainty, Plaintiff obtained, and moved for leave to file, an additional affidavit of Dr. Sean Greenhalgh, directed specifically to defendant Aljabi. Granting Plaintiff leave to file Dr. Greenhalgh’s affidavit of merit would render defense counsel’s argument about the validity of Dr. Khandelwal’s affidavit moot and render its Motion to Dismiss on the basis of an Affidavit of Merit likewise moot. Because Plaintiff has a pending Motion for Leave that will resolve the arguments raised by Defendant in its Motion to Dismiss based on the affidavit of merit, Plaintiff respectfully requests a stay on responding to the Motion to Dismiss until the Court can rule on Plaintiff’s Motion for Leave. Granting a stay on Plaintiff’s Opposition to the Motion to Dismiss will, like granting Plaintiff’s Motion for Leave, preserve judicial time and resources, unnecessary delays and costs. WHEREFORE, based on the forgoing, Plaintiff respectfully requests an Order staying its response to Defendant’s Motion to Dismiss based on an Affidavit of Merit pending the Court’s ruling on Plaintiff’s Motion for leave to supplement its pleading with the affidavit of merit specifically directed toward Nurse Aljabi. Electronically Filed 06/21/2023 15:22 / MOTION / CV 23 975038 / Confirmation Nbr. 2889583 / CLCEJ 2 Respectfully submitted, /s/ Eric W.Henry Eric W. Henry, Esq. (0086750) Katherine S. Knouff (0085566) The Henry Law Firm 8401 ChagrinRoad, Suite 18 Chagrin Falls, Ohio 44023 440-337-0083 Telephone 440-337-0084 Facsimile eric@erichenrylaw.com Kathie@erichenrylaw.com Attorneys for Plaintiff CERTIFICATE OF SERVICE Counsel for Plaintiff hereby certifies that a true and accurate copy of the foregoing has been sent to all counsel of record via this Court’s e-filing system this 21st day of June 2023. ERIC W. HENRY (0086750) Attorney for Plaintiff Electronically Filed 06/21/2023 15:22 / MOTION / CV 23 975038 / Confirmation Nbr. 2889583 / CLCEJ 3